Up for a challenge

Since its publication, the Government’s National Planning Policy Framework (NPPF) has been widely criticised for its lack of clarity. This has made the exact meaning of the policies on housing a feast for lawyers, and created a lot of stress for people who want to protect their local countryside and avoid damaging development.

The NPPF states that relevant local policies should be considered out of date where a local authority does not have an up-to-date five year supply of housing sites. As we demonstrated in our 2014 report Targeting the Countryside, most local authorities do not have such a supply, thus giving developers the expectation that their applications will be allowed. But the NPPF also excludes a number of areas from this ‘presumption in favour of sustainable development’. These include Green Belts, Areas of Outstanding Natural Beauty, and Sites of Special Scientific Interest.

The Richborough Estates case has been widely interpreted as meaning that protection for these areas is now weakened. For example, a report on the industry website Planning Resource states that the ruling ‘could give developers wider scope to build on protected land’. Richborough Estates themselves call the case ‘a landmark ruling that has far-reaching implications for the development industry and planning community concerning the delivery of housing across the UK’. Some local authorities have been influenced by these claims, including Wealden District Council in Sussex which covers large tracts of nationally protected landscapes and wildlife areas. In a recent briefing paper the council stated that ‘a lack of a 5 year land supply means … protective policies such as the AONB are significantly weakened and viewed as out of date. A recent landmark court of appeal judgment [referring to the Richborough case] makes it very clear that planning authorities like Wealden should grant permission for housing developments unless there are very strong grounds for refusal.’

CPRE’s message

CPRE and other local campaigners can play an important role in giving local authorities the confidence to continue to uphold policies for the protection of the countryside. The suggestion that the Richborough case weakens established policies is missing the point, and should be challenged. Those saying this have not read the judge’s comments properly or are cherry picking bits of it favourable to them. It will be worth checking that the local planning authority planning officer or lawyer - or indeed the developer - are interpreting the Richborough judgment properly.

First, the Richborough judgment itself makes clear that just because local policies may be ‘out of date’, it does not mean that they are irrelevant. The duty in planning law to decide applications in accordance with policies in a local authority’s adopted plan remains in place. The judge makes the particularly important point that ‘there will be many cases’ in which restrictive policies ‘are given sufficient weight to justify the refusal of planning permission despite their not being up to date’ in the sense that the local authority lacks a five year land supply.

The judge also clearly said that the weight to be given to a restrictive policy (or any other policy) was a question of planning judgement for the local planning authority, and not something for the courts, which would only get involved if something was done unlawfully.

Second, you can refer local planning officers to a more recent planning inspector’s decision in Ilfracombe, North Devon. This refers to the Richborough judgment. But the planning inspector makes clear that the judgment did not prevent him from refusing planning permission for a major, and harmful, development proposal in an AONB, and on the grounds of policies in the NPPF mentioned above that restrict development in these areas.

Nonetheless, the case, and fall out from it, illustrates the problems caused by the NPPF policies on housing supply. There is still a chance to put pressure on the Government to alter its policies to allow local authorities to set more realistic housing targets, give more weight to countryside protection and prioritise development on suitable brownfield sites. If you feel strongly about this then we’d urge you to let your MP know via our website.

Thank you to Nicholas Whitsun-Jones, planning volunteer and trustee at CPRE Somerset, for his contribution to this piece.